Very often in New York when we appear with our client’s at the Department of Motor Vehicles (DMV) office for a refusal hearing a few days after a DWI arrest, the arresting officer does not appear for the hearing. As a result, our client will get back their driving privileges without a hearing being held. The refusal charges are Not dismissed at that time. A new date will be set for a refusal hearing to actually take place. No actual date is given for the refusal hearing at that time but a new date is sent in the mail for the refusal hearing to take place, usually within three months.
These are the issues at the refusal hearing:
1. Did the police officer have reasonable grounds to believe that you had been driving while intoxicated,
2. Did the police officer make a lawful arrest,
3. Where you given sufficient warning, in clear and unequivocal language prior to the refusal that a refusal would result in the immediate suspension and subsequent revocation of your license or operating privileges whether or not you where found guilty of the DWI,
4. Did you refuse to submit to the chemical test.
If all four elements are not established then your suspension is terminated and your privileges to drive in New York are reinstated.
If the police officer fails to appear at the second scheduled refusal hearing does the motorist automatically win? Not so fast. The unfortunate answer is no. The Administrative Law Judge (ALJ) can conduct the refusal hearing without the police officer appearing in person for the hearing. The Administrative Law Judge can review the police officer’s reports, specifically the Report of Refusal and any other relevant evidence that has been submitted to the DMV. As a result of his review of these reports, the ALJ may make a finding against the motorist and determine that all the proper steps were taken by the police officer to prove the refusal to take the breath test.
What is the motorist to do to avoid this result? At the second refusal hearing, if the police officer fails to appear, the motorist is entitled to an adjournment to subpoena the police officer for purposes of cross-examination. Then, if the police officer fails to appear at the refusal hearing, then the charges will be dismissed.
We are experienced New York DWI attorneys who know the law. We are here to protect your rights and your drivers license.